Background

• In April 2018 Kinsey was charged with sexual assault, pleaded guilty under a plea bargain, and the trial court deferred adjudication and placed him on 10 years' community supervision.
• The State later filed a motion to adjudicate; Kinsey pleaded true to violations; the court adjudicated guilt and sentenced him to 12 years' imprisonment.
• The bill of costs listed total costs of $536, including a $25 time-payment fee and a notation that an additional $15 time-payment fee would be assessed if payment was late; the judgment incorrectly recited court costs as $0.00.
• Kinsey appealed, arguing the $25 and $15 time-payment fees (under former Tex. Loc. Gov’t Code §133.103) were facially unconstitutional and prematurely assessed.
• The State conceded the $25 fee was prematurely assessed but argued the fee scheme was constitutional and did not assert the $15 had been assessed.
• The court held the $25 fee was prematurely imposed under Dulin v. State, struck the $25 without prejudice to later assessment (if unpaid 30+ days after issuance of mandate), modified the judgment to reflect $511 in court costs, and rejected Kinsey’s challenge to a $15 fee that was not shown as assessed; judgment affirmed as modified.

Issues

Key Cases Cited

• Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021) (pendency of appeal stops the 30-day clock for time-payment fee)
• Ingram v. State, 261 S.W.3d 749 (Tex. App.—Tyler 2008) (appellate courts may reform judgments to make the record speak the truth)
• Davis v. State, 323 S.W.3d 190 (Tex. App.—Dallas 2008) (same authority to modify judgments)
• Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991) (appellate power to reform incorrect judgments independent of party request)
• Clinton v. Jones, 520 U.S. 681 (1997) (courts should avoid deciding constitutional questions if unnecessary)
• Pena v. State, 191 S.W.3d 133 (Tex. Crim. App. 2006) (same avoidance principle in Texas law)